By Leslie Z. Walker
The Court of Appeals for the Second Appellate District demonstrated in January, that substantial evidence of a fair argument includes any evidence in the record, even a report from the Scottish Government evaluating a plastic bag tax. In Save the Plastic Bag Coalition v. City of Manhattan Beach (January 21, 2010, B215788) ___ Cal.App.4th___,the appellate court found that substantial evidence supported a fair argument that an ordinance prohibiting the use of plastic bags in the city may require the preparation of an environmental impact report (“EIR”).
The coastal city of Manhattan Beach adopted Ordinance No. 2115 which prohibited certain retailers and establishments from using plastic bags in order to preserve the marine environment by reducing the number of plastic bags making their way into and polluting the ocean.
The City prepared an initial study (“IS”) for the ordinance. Based on the IS, the city determined the ordinance was not a project involving any significant impacts on the environment and prepared a negative declaration. The city acknowledged the ordinance may result in greater paper bag use, which could have negative environmental effects including increased power plant, paper mill and recycling plant emissions; increased traffic involved in shipping the pager bags to retail establishments; and increased emissions from trucks carrying the heavier, bulkier paper bags. The IS found that reducing the use of plastic bags in the city would have a modest positive impact on the migration of plastic refuse into the ocean, and that the impacts of the ordinance with respect to air quality, traffic and landfill capacity due to the increased use of paper bags would be less than significant. The city determined there was no substantial evidenced the project may have a significant effect on the environment, and therefore adopted a negative declaration.
An association of plastic bag manufacturers (“Association”) brought suit, claiming the ordinance may result in the increased use of paper bags, which in turn would result in significant environmental impacts. The Association challenged the use of a negative declaration, pointing to five reports in the record as substantial evidence that the project may have a significant effect on the environment: a 2005 report commissioned by the Scottish Government in response to a bill in Parliament to impose a levy on plastic bags; a 2007 study commissioned by the Progressive Bag Alliance to conduct a life cycle assessment of three types of grocery bags; a 2008 Use Less Stuff Report; the 1990 Report prepared by Franklin Associates, Ltd.; and the 2007 Los Angeles County Report.
The trial court found the association presented substantial evidence of a fair argument that the ordinance may have a significant environmental impact and therefore an EIR had to be prepared. The trial court agreed and the city appealed.
The appellate court first addressed the Association’s standing to assert the claim and found the association had standing under the public right/duty exception which provides that a citizen interested in having a law executed and a duty in question enforced, need not show that he has any legal or special interest in the result. The court stated, “[t]his is not a case in which the plaintiff’s interest is purely commercial and competitive.”
The court proceeded to determine whether the evidence in the record met the low threshold requiring the preparation of an EIR. The court explained that it is the plaintiff who has the burden of demonstrating the existence of substantial evidence of a fair argument that a project may have a significant effect on the environment.
The court found that four of the five reports cited by the Association supported the conclusions that prohibiting plastic bags is likely to lead to increased use of paper and reusable bags; paper bags have a greater negative environmental effect as compared to plastic bags; and these negative environmental effects include greater nonrenewable energy and water consumption, greenhouse gas emissions, solid waste production, and acid rain. This constituted substantial evidence of a fair argument that the plastic bag distribution may have a significant environmental effect, meeting the low threshold for the preparation of an environmental impact report.
Justice Mosk’s dissent presents tempting logic stating,
“requiring the small city of Manhattan Beach . . . to expend public resources to prepare and environmental impact report (EIR) for enacting what the City believes is an environmentally friendly ordinance phasing out the retail distribution (not use) of plastic carryout bags within the City . . . stretches the California Environmental Quality Act . . . and the requirement for an EIR to an absurdity. . . This action to require an EIR was generated by the plastic bag industry for its economic interest.”
Economic interest or not, this case shows us just how low the threshold is for the fair argument standard goes.
Leslie Z. Walker is an associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.